PROLOGIS
Exhibit 1.1
EXECUTION VERSION
$550,000,000
5.625% Notes due 2016
dated November 9, 0000
Xxxx xx Xxxxxxx Securities LLC
Citigroup Global Markets Inc.
Greenwich Capital Markets, Inc.
Citigroup Global Markets Inc.
Greenwich Capital Markets, Inc.
November 9, 0000
XXXX XX XXXXXXX SECURITIES LLC
CITIGROUP GLOBAL MARKETS INC.
GREENWICH CAPITAL MARKETS, INC.
CITIGROUP GLOBAL MARKETS INC.
GREENWICH CAPITAL MARKETS, INC.
c/o Banc of America Securities LLC
Hearst Tower
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Hearst Tower
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Ladies and Gentlemen:
Introductory. ProLogis, a Maryland real estate investment trust (the “Company”), proposes to
issue and sell to the several underwriters named in Schedule A (the “Underwriters”), acting
severally and not jointly, the respective amounts set forth in such Schedule A hereto of
$550,000,000 aggregate principal amount of the Company’s 5.625% Notes due 2016 (the “Notes”).
Banc of America Securities LLC (“BAS”), Citigroup Global Markets Inc. and Greenwich Capital
Markets, Inc. have agreed to act as representatives of the several Underwriters (in such capacity,
the “Representatives”) in connection with the offering and sale of the Notes.
The Notes will be issued pursuant to an indenture, dated as of March 1, 1995 (the
“Indenture”), between the Company and U.S. Bank National Association (formerly State Street Bank
and Trust Company), as trustee (the “Trustee”), as supplemented by the first supplemental
indenture, dated as of February 9, 2005 (the “First Supplemental Indenture”), the second
supplemental indenture, dated as of November 2, 2005 (the “Second Supplemental Indenture”) and the
third supplemental indenture, dated as of November 2, 2005 (the “Third Supplemental Indenture” and
together with the Base Indenture, the First Supplemental Indenture and the Second Supplemental
Indenture, the “Indenture”). Certain terms of each series of Notes will be established pursuant to
Board Resolutions (as defined in the Indenture) adopted by the Company pursuant to Section 301 of
the Indenture. The Notes will be issued in book-entry form in the name of Cede & Co., as nominee
of The Depository Trust Company (the “Depositary”), pursuant to a Letter of Representations, dated
December 29, 2003 (as defined in Section 2 below) (the “DTC Agreement”), between the Company and
the Depositary.
The Company has prepared and filed with the Securities and Exchange Commission (the
“Commission”) a registration statement on Form S-3 (File No. 333-132616), which contains a base
prospectus dated August 21, 2006 (the “Base Prospectus”), to be used in connection with the public
offering and sale of debt securities, including the Notes, and other securities of the Company
under the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder
(collectively, the “Securities Act”), and the offering thereof from time to
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time in accordance with Rule 415 under the Securities Act. Such registration statement, as
amended, including the financial statements, exhibits and schedules thereto, in the form in which
it became effective under the Securities Act, including any required information deemed to be a
part thereof at the time of effectiveness pursuant to Rule 430B under the Securities Act, is called
the “Registration Statement.” The term “Prospectus” shall mean the final prospectus supplement
relating to the Notes, together with the Base Prospectus, that is first filed pursuant to Rule
424(b) after the date and time that this Agreement is executed and delivered by the parties hereto.
The term “Preliminary Prospectus” shall mean any preliminary prospectus supplement relating to the
Notes, together with the Base Prospectus, that is first filed with the Commission pursuant to Rule
424(b). Any reference herein to the Registration Statement, the Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents that are or are deemed to be
incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities Act prior to
3:45 p.m. Eastern Time on November 9, 2006 (the “Initial Sale Time”). All references in this
Agreement to the Registration Statement, the Preliminary Prospectus, the Prospectus, or any
amendments or supplements to any of the foregoing, shall include any copy thereof filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System (“XXXXX”).
All references in this Agreement to financial statements and schedules and other information
which is “disclosed,” “contained,” “included” or “stated” (or other references of like import) in
the Registration Statement, Prospectus or Preliminary Prospectus shall be deemed to mean and
include all such financial statements and schedules and other information which is or is deemed to
be incorporated by reference in the Registration Statement, Prospectus or Preliminary Prospectus,
as the case may be, prior to the Initial Sale Time; and all references in this Agreement to
amendments or supplements to the Registration Statement, Prospectus or Preliminary Prospectus shall
be deemed to include the filing of any document under the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), which is or is deemed to be incorporated by reference in the
Registration Statement, Prospectus or Preliminary Prospectus, as the case may be, after the Initial
Sale Time.
The Notes, together with certain other senior indebtedness of the Company, will have the
benefit of a pledge of certain collateral (the “Collateral”) pursuant to (i) that certain Second
Amended and Restated Borrower Pledge Agreement dated as of October 6, 2005 (the “Borrower Pledge
Agreement”) executed by the Company and Bank of America, N.A., as collateral agent (the “Collateral
Agent”); (ii) each of the separate Subsidiary Pledge Agreements dated as of October 6, 2005
(collectively, the “Subsidiary Pledge Agreements”; and, together with the Borrower Pledge
Agreement, the “U.S. Pledge Agreements”) executed by the Collateral Agent and each of ProLogis
Japan Finance Incorporated, ProLogis Japan Incorporated, ProLogis Development Services
Incorporated, ProLogis Management Incorporated, ProLogis-North Carolina (2) Incorporated,
ProLogis-Monterrey (1) LLC, ProLogis-Monterrey (2) LLC, ProLogis-Reynosa (1) LLC, ProLogis-Reynosa
(2) LLC (such entities being the “U.S. Grantors”), ProLogis KK (the “Japanese Grantor”), ProLogis
China Holding II Srl. (the “Barbados Grantor”); and (iii) that certain Pledge of Intercompany
Receivables dated as of October 6, 2005 executed by PLD Europe Finance B.V., ProLogis UK Funding
B.V., ProLogis UK Finding II B.V. (such entities being the “Dutch Grantors”; and, together with the
Japanese Grantor and the Barbados Grantor, the “Foreign Grantors”; and, together with the U.S.
Grantors, the Japanese Grantor and the Barbados Grantor, the “Subsidiary Grantors”; and the
Subsidiary
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Grantors together with the Company, the “Grantors”), and the Collateral Agent (the
“Intercompany Pledge Agreement”; and, together with the U.S. Pledge Agreements, the “Pledge
Agreements”) The rights, duties, authority and responsibilities of the Collateral Agent and the
relationship among the Credit Parties (which includes, without limitation, the holders of debt
securities issued under the Indenture, including the Notes) regarding their pari passu interests in
the collateral is governed by that certain Amended and Restated Security Agency Agreement, dated as
of October 6, 2005 (the “Security Agency Agreement”) among the Company, Collateral Agent and Bank
of America, N.A., as Global Administrative Agent (the “Administrative Agent”). The Security Agency
Agreement, the Pledge Agreements and any related security documents are referred to herein
collectively as the “Security Documents.”
The Company hereby confirms its agreements with the Underwriters as follows:
Section 1. Representations and Warranties. The Company hereby represents, warrants
and covenants to each Underwriter as of the date hereof, as of the Initial Sale Time and as of the
Closing Date (in each case, a “Representation Date”), as follows:
At the respective times the Registration Statement and any post-effective amendments thereto
(including the filing of the Company’s most recent Annual Report on Form 10-K with the Commission
(the “Annual Report on Form 10-K”)) became effective and at each Representation Date, the
Registration Statement and any amendments thereto (i) complied and will comply in all material
respects with the requirements of the Securities Act and the rules and regulations of the
Commission thereunder (the “Securities Act Regulations”) and the Trust Indenture Act and the rules
and regulations of the Commission thereunder, and (ii) did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. At the date of the Prospectus and at the
Closing Date, neither the Prospectus nor any amendments or supplements thereto included or will
include an untrue statement of a material fact or omitted or will omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading. Notwithstanding the foregoing, the representations and warranties
in this subsection shall not apply to (i) that part of the Registration Statement which constitutes
the Statement of Eligibility on Form T-1 of the Trustee under the Trust Indenture Act (the “Form
T-1”) and (ii) statements in or omissions from the Registration Statement or any post-effective
amendment or the Prospectus or any amendments or supplements thereto, made in reliance upon and in
conformity with information furnished to the Company in writing by any Underwriter through the
Representatives expressly for use therein, it being understood and agreed that the only such
information furnished by the Representatives consists of the information described as such in
Section 8(b) hereof.
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Each preliminary prospectus and prospectus filed as part of the Registration Statement, as
originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the
Securities Act, complied when so filed in all material respects with the Securities Act Regulations
and the Preliminary Prospectus and the Prospectus delivered to the Underwriters for use in
connection with the offering of the Notes will, at the time of such delivery, be identical to any
electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to
the extent permitted by Regulation S-T.
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(h) The Underwriting Agreement. This Agreement has been duly authorized, executed and
delivered by the Company.
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Indenture and delivered against payment of the purchase price therefor, will constitute valid
and binding obligations of the Company, enforceable in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or other similar laws relating to or affecting the rights and remedies of creditors or
by general equitable principles, and will be entitled to the benefits of the Indenture.
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PricewaterhouseCoopers LLP, who have expressed their opinion with respect to the Catellus
Development Corporation’s (“Catellus”) audited financial statements for the fiscal years ended
December 31, 2003 and 2004 incorporated by reference in the Registration Statement, the Preliminary
Prospectus and the Prospectus, were, prior to September 15, 2005 and during the period covered by
the financial statements of Catellus for which they reported, independent public or certified
public accountants with respect to Catellus within the meaning of Regulation S-X under the
Securities Act and the Exchange Act and a registered public accounting firm within the meaning of
the Xxxxxxxx-Xxxxx Act of 2002.
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and has the power and authority to own, lease and operate its properties and to conduct its
business as described in the Disclosure Package and the Prospectus, and to enter into and perform
its obligations under the respective Pledge Agreement. Each Subsidiary Grantor is duly qualified
to transact business and is in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the conduct of business,
except for such jurisdictions where the failure to so qualify or to be in good standing would not,
individually or in the aggregate, result in a Material Adverse Change.
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such Defaults as would not, individually or in the aggregate, result in a Material Adverse
Change. The Company’s execution, delivery and performance of this Agreement and the Indenture, and
the issuance and delivery of the Notes, the consummation of the transactions contemplated hereby or
thereby and by the Disclosure Package and the Prospectus and the Grantors’ execution, delivery and
performance of the Pledge Agreements (i) have been duly authorized by all necessary trust,
corporate or other action, as the case may be, and will not result in any violation of the
provisions of the declaration of trust (or charter or by-laws or other similar constitutive
documents) of the Grantors or any subsidiary of the Company, except, in the case of subsidiaries of
the Company, for such violations as would not, individually or in the aggregate, result in a
Material Adverse Change, (ii) will not conflict with or constitute a breach of, or Default under,
or result in the creation or imposition of any lien, charge or encumbrance (other than the lien,
charge or encumbrance created by the Pledge Agreements in favor of the Collateral Agent) upon any
property or assets of the Grantors or any of their subsidiaries pursuant to, or require the consent
of any other party to, any Existing Instrument, except for such conflicts, breaches, Defaults,
liens, charges or encumbrances as would not, individually or in the aggregate, result in a Material
Adverse Change and (iii) will not result in any violation of any law, administrative regulation or
administrative or court decree applicable to the Grantors or any subsidiary of the Company, except
for such violation as would not, individually or in the aggregate, result in a Material Adverse
Change. No consent, approval, authorization or other order of, or registration or filing with, any
court or other governmental or regulatory authority or agency, is required for the Company’s
execution, delivery and performance of this Agreement or the Indenture, or the issuance and
delivery of the Notes or consummation of the transactions contemplated hereby or thereby and by the
Disclosure Package and the Prospectus, or the Grantors’ execution, delivery and performance of the
Pledge Agreements, except such as have been obtained or made by the Company or the Grantors and are
in full force and effect under the Securities Act, the Trust Indenture Act and applicable state
securities or blue sky laws and from NASD or the failure of which to obtain would not result in a
Material Adverse Change or have a material adverse effect on the consummation of the transactions
contemplated by this Agreement.
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necessary to conduct their businesses as now conducted, except as would not result in a
Material Adverse Change; and the expected expiration of any of such Intellectual Property Rights
would not result in a Material Adverse Change. Neither the Company nor any of its subsidiaries has
received any notice of infringement or conflict with asserted Intellectual Property Rights of
others, which infringement or conflict, if the subject of an unfavorable decision, would result in
a Material Adverse Change. The Company is not a party to or bound by any options, licenses or
agreements with respect to the Intellectual Property Rights of any other person or entity that are
required to be set forth in the Registration Statement, the Preliminary Prospectus or the
Prospectus, and that are not described in all material respects in such documents. None of the
technology employed by the Company has been obtained or is being used by the Company in violation
of any contractual obligation binding on the Company or, to the Company’s knowledge, any of its
officers, directors or employees or otherwise in violation of the rights of any persons, except for
such violations as would not, individually or in the aggregate, result in a Material Adverse
Change.
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investment trust under Sections 856 through 860 of the Internal Revenue Code of 1986, as
amended, and the regulations and published interpretations thereunder (the “ Internal Revenue
Code”) and the Company’s present and contemplated organizational ownership, method of operation,
assets and income are such that the Company will continue to meet such requirements.
(bb) Company Not an “Investment Company.” The Company is not, and after receipt of payment
for the Notes will not be, an “investment company” within the meaning of the Investment Company Act
of 1940, as amended (the “Investment Company Act”).
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respect to which the Company has received written notice, no investigation with respect to
which the Company has received written notice, and no written notice by any person or entity
alleging potential liability for investigatory costs, cleanup costs, governmental responses costs,
natural resources damages, property damages, personal injuries, attorneys’ fees or penalties
arising out of, based on or resulting from the presence, or release into the environment, of any
Material of Environmental Concern at any location owned, leased or operated by the Company or any
of its subsidiaries, now or in the past (collectively, “Environmental Claims”), pending or, to the
best of the Company’s knowledge, threatened against the Company or any of its subsidiaries or any
person or entity whose liability for any Environmental Claim the Company or any of its subsidiaries
has retained or assumed either contractually or by operation of law; and (iii) to the best of the
Company’s knowledge, there are no past or present actions, activities, circumstances, conditions,
events or incidents, including, without limitation, the release, emission, discharge, presence or
disposal of any Material of Environmental Concern, that reasonably could result in a violation of
any Environmental Law or form the basis of a potential Environmental Claim against the Company or
any of its subsidiaries or against any person or entity whose liability for any Environmental Claim
the Company or any of its subsidiaries has retained or assumed either contractually or by operation
of law.
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Any certificate signed by any officer of the Company or any of its subsidiaries and delivered
to any Underwriter or to counsel for the Underwriters in connection with the offering of the Notes
shall be deemed a representation and warranty by the Company to each Underwriter as to the matters
set forth therein on the date of such certificate and, unless subsequently amended or supplemented,
at each Representation Date subsequent thereto.
The Company acknowledges that the Underwriters and, for purposes of the opinions to be
delivered pursuant to Section 5 hereof, counsel for the Company and counsel for the Underwriters,
will rely upon the accuracy and truthfulness of the foregoing representations and hereby consents
to such reliance.
Section 2. Purchase, Sale and Delivery of the Notes.
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Sterling LLP (or such other place as may be agreed to by the Company and the Representatives)
at 9:00 a.m., New York City time, on November 14, 2006, or such other time and date as the
Underwriters shall designate by notice to the Company (the time and date of such closing are called
the “Closing Date”).
It is understood that the Representatives have been authorized, for their own accounts and for
the accounts of the several Underwriters, to accept delivery of and receipt for, and make payment
of the purchase price for, the Notes that the Underwriters have agreed to purchase. The
Representatives may (but shall not be obligated to) make payment for any Notes to be purchased by
any Underwriter whose funds shall not have been received by the Representatives by the Closing Date
for the account of such Underwriter, but any such payment shall not relieve such Underwriter from
any of its obligations under this Agreement.
(e) Delivery of the Notes. The Company shall deliver, or cause to be delivered, to the
Representatives for the accounts of the several Underwriters certificates for the Notes at the
Closing Date, against the irrevocable release of a wire transfer of immediately available funds for
the amount of the purchase price therefor. The certificates for the Notes shall be in such
denominations and registered in such names and denominations as the Representatives shall have
requested at least two full business days prior to the Closing Date and shall be made available for
inspection on the business day preceding the Closing Date at a location in New York City, as the
Representatives may designate. Time shall be of the essence, and delivery at the time and place
specified in this Agreement is a further condition to the obligations of the Underwriters.
Section 3. Additional Covenants. The Company further covenants and agrees with each
Underwriter as follows:
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proceedings for any of such purposes. The Company will promptly effect the filings necessary
pursuant to Rule 424 and will take such steps as it deems necessary to ascertain promptly whether
the Preliminary Prospectus and the Prospectus transmitted for filing under Rule 424 was received
for filing by the Commission and, in the event that it was not, it will promptly file such
document. The Company will use its best efforts to prevent the issuance of any stop order and, if
any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
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would include any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein in the light of the circumstances under which
they were made or then prevailing, as the case may be, not misleading, or if, in the opinion of
counsel for the Underwriters or for the Company, it shall be necessary to amend or supplement the
Disclosure Package or the Prospectus, or to file under the Exchange Act any document incorporated
by reference in the Disclosure Package or the Prospectus, in order to make the statements therein,
in the light of the circumstances under which they were made or then prevailing, as the case may
be, not misleading, or if in the opinion of either such counsel, it is otherwise necessary or
advisable to amend or supplement the Registration Statement, the Disclosure Package or the
Prospectus, or to file under the Exchange Act any document incorporated by reference in the
Disclosure Package or the Prospectus, or to file a new registration statement containing the
Prospectus, in order to comply with law, including in connection with the delivery of the
Prospectus, the Company agrees to (i) notify the Representatives of any such event or condition and
(ii) promptly prepare (subject to Section 3(b) and 3(l) hereof), file with the Commission (and use
its best efforts to have any amendment to the Registration Statement or any new registration
statement to be declared effective) and furnish at its own expense to the Underwriters and to
dealers in such quantities as they may reasonably request, amendments or supplements to the
Registration Statement, the Disclosure Package or the Prospectus, or any new registration
statement, necessary in order to make the statements in the Disclosure Package or the Prospectus as
so amended or supplemented, in the light of the circumstances under which they were made or then
prevailing, as the case may be, not misleading or so that the Registration Statement, the
Disclosure Package or the Prospectus, as amended or supplemented, will comply with law.
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(i) Periodic Reporting Obligations. During the Prospectus Delivery Period the Company shall
file, on a timely basis, with the Commission and the New York Stock Exchange all reports and
documents required to be filed under the Exchange Act.
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automatic shelf registration statement form, the Company will (i) promptly notify the
Representatives, (ii) promptly file a new registration statement or post-effective amendment on the
proper form relating to the Notes, in a form satisfactory to the Representatives, (iii) use its
best efforts to cause such registration statement of post-effective amendment to be declared
effective and (iv) promptly notify the Representatives of such effectiveness. The Company will
take all other action necessary or appropriate to permit the public offering and sale of the Notes
to continue as contemplated in the registration statement that was the subject of the Rule
401(g)(2) notice or for which the Company has otherwise become ineligible. References herein to
the Registration Statement shall include such new registration statement or post-effective
amendment, as the case may be.
The Representatives, on behalf of the several Underwriters, may, in their sole discretion,
waive in writing the performance by the Company of any one or more of the foregoing covenants or
extend the time for their performance.
Section 4. Payment of Expenses. The Company agrees to pay all costs, fees and
expenses incurred in connection with the performance of its obligations hereunder and in connection
with the transactions contemplated hereby, including without limitation (i) all expenses incident
to the issuance and delivery of the Notes (including all printing and engraving costs), (ii) all
necessary issue, transfer and other stamp taxes in connection with the issuance and sale of the
Notes to the Underwriters, (iii) all fees and expenses of the Company’s counsel, independent public
or certified public accountants and other advisors to the Company, (iv) all costs and expenses
incurred in connection with the preparation, printing, filing, shipping and distribution of the
Registration Statement (including financial statements, exhibits, schedules, consents and
certificates of experts), each Issuer Free Writing Prospectus, the Preliminary Prospectus and the
Prospectus, and all amendments and supplements thereto, and this Agreement, the Indenture, the DTC
Agreement and the Notes, (v) all filing fees, attorneys’ fees and expenses incurred by the Company
or the Underwriters in connection with qualifying or registering (or obtaining exemptions from the
qualification or registration of) all or any part of the Notes for offer and sale under the state
securities or blue sky laws, and, if requested by the Representatives, preparing a “Blue Sky
Survey” or memorandum, and any supplements thereto, advising the Underwriters of such
qualifications, registrations and exemptions, (vi) the filing fees incident to the review and
approval by NASD of the terms of the sale of the Notes, (vii) the fees and expenses of the Trustee,
including the reasonable fees and disbursements of counsel for the Trustee in connection with the
Indenture and the Notes, (viii) any fees payable in connection with the rating of the Notes with
the ratings agencies, (ix) all fees and expenses (including reasonable fees and expenses of
counsel) of the Company in connection with approval of the Notes by the Depositary for “book-entry”
transfer, (x) all other fees, costs and expenses referred to in Item 14 of Part II of the
Registration Statement, and (xi) all other fees, costs and expenses incurred in connection with the
performance of its obligations hereunder for which provision is not otherwise made in this Section.
Except as provided in this Section 4, Section 6, Section 8
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and Section 9 hereof, the Underwriters shall pay their own expenses, including the fees and
disbursements of their counsel.
Section 5. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Notes as provided herein on the Closing Date
shall be subject to the accuracy of the representations and warranties on the part of the Company
set forth in Section 1 hereof as of the date hereof, as of the Initial Sale Time, and as of the
Closing Date as though then made and to the timely performance by the Company of its covenants and
other obligations hereunder, and to each of the following additional conditions:
(i) in the judgment of the Representatives there shall not have occurred any Material
Adverse Change; and
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(ii) there shall not have occurred any downgrading, nor shall any notice have been
given of any intended or potential downgrading or of any review for a possible change that
does not indicate the direction of the possible change, in the rating accorded any
securities of the Company or any of its subsidiaries by any “nationally recognized
statistical rating organization” as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act.
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(i) the Company has received no stop order suspending the effectiveness of the
Registration Statement, and no proceedings for such purpose have been instituted or
threatened by the Commission;
(ii) the Company has not received from the Commission any notice pursuant to Rule
401(g)(2) of the Securities Act objecting to use of the automatic shelf registration
statement form;
(iii) there has not occurred any downgrading, and the Company has not received any
notice of any intended or potential downgrading or of any review for a possible change that
does not indicate the direction of the possible change, in the rating accorded any
securities of the Company or any of its subsidiaries by any “nationally recognized
statistical rating organization” as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act;
(iv) for the period from and after the date of this Agreement and prior to such
Closing Date, there has not occurred any Material Adverse Change;
(v) the representations, warranties and covenants of the Company set forth in Section
1 of this Agreement are true and correct with the same force and effect as though expressly
made on and as of such Closing Date; and
(vi) the Company has complied with all the agreements hereunder and satisfied all the
conditions on its part to be performed or satisfied hereunder at or prior to such Closing
Date.
If any condition specified in this Section 5 is not satisfied when and as required to be
satisfied, this Agreement may be terminated by the Representatives by notice to the Company at any
time on or prior to the Closing Date, which termination shall be without liability on the part of
any party to any other party, except that Section 4, Section 6, Section 8 and Section 9 shall at
all times be effective and shall survive such termination.
Section 6. Reimbursement of Underwriters’ Expenses. If this Agreement is terminated
by the Representatives pursuant to Section 5 or Section 11, or if the sale to the Underwriters of
the Notes on the Closing Date is not consummated because of any refusal, inability or failure on
the part of the Company to perform any agreement herein or to comply with any provision hereof, the
Company agrees to reimburse the Representatives and the other Underwriters (or such Underwriters as
have terminated this Agreement with respect to themselves), severally, upon demand for all
out-of-pocket expenses that shall have been reasonably incurred by the Representatives and the
Underwriters in connection with the proposed purchase and the offering
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and sale of the Notes, including but not limited to reasonable fees and disbursements of
counsel, printing expenses, travel expenses, postage, facsimile and telephone charges.
Section 7. Offering Restrictions.
In relation to each Member State of the European Economic Area which has implemented the
Prospectus Directive (each, a Relevant Member State), each Underwriter represents and agrees that
with effect from and including the date on which the Prospectus Directive is implemented in that
Relevant Member State (the Relevant Implementation Date) it has not made and will not make an offer
of the Notes to the public in that Relevant Member State prior to the publication of a prospectus
in relation to the Notes which has been approved by the competent authority in that Relevant Member
State or, where appropriate, approved in another Relevant Member State and notified to the
competent authority in that Relevant Member State, all in accordance with the Prospectus Directive,
except that it may, with effect from and including the Relevant Implementation Date, make an offer
of the Notes to the public in that Relevant Member State at any time:
(a) to legal entities which are authorised or regulated to operate in the financial markets
or, if not so authorised or regulated, whose corporate purpose is solely to invest in securities;
(b) to any legal entity which has two or more of (1) an average of at least 250 employees
during the last financial year; (2) a total balance sheet of more than €43,000,000 and (3) an
annual net turnover of more than €50,000,000, as shown in its last annual or consolidated
accounts; or
(c) in any other circumstances which do not require the publication by the Issuer of a
prospectus pursuant to Article 3 of the Prospectus Directive.
For the purposes of this provision, the expression an “offer of notes to the public” in
relation to any Notes in any Relevant Member State means the communication in any form and by any
means of sufficient information on the terms of the offer and the Notes to be offered so as to
enable an investor to decide to purchase or subscribe the Notes, as the same may be varied in that
Member State by any measure implementing the Prospectus Directive in that Member State and the
expression Prospectus Directive means Directive 2003/71/ EC and includes any relevant implementing
measure in each Relevant Member State.
Each Underwriter further represents and agrees that:
(a) it has only communicated or caused to be communicated and will only communicate or cause
to be communicated an invitation or inducement to engage in investment activity (within the meaning
of Section 21 of the Financial Services and Markets Xxx 0000 (“FSMA”)) received by it in connection
with the issue or sale of the notes in circumstances in which Section 21(1) of the FSMA would not,
if the Issuer was not an authorised person, apply to the Company; and
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(b) it has complied and will comply with all applicable provisions of the FSMA with respect
to anything done by it in relation to the notes in, from or otherwise involving the United Kingdom.
Section 8. Indemnification.
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thereof as contemplated below) arises out of or is based upon any untrue or alleged untrue
statement of a material fact contained in the Registration Statement, any Issuer Free Writing
Prospectus, the Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto),
or arises out of or is based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in the Registration Statement, any Issuer Free Writing
Prospectus, the Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto),
in reliance upon and in conformity with written information furnished to the Company by the
Representatives expressly for use therein; and to reimburse the Company, or any such trustee,
officer or controlling person for any legal and other expense reasonably incurred by the Company,
or any such director, officer or controlling person in connection with investigating, defending,
settling, compromising or paying any such loss, claim, damage, liability, expense or action. The
Company hereby acknowledges that the only information that the Underwriters have furnished to the
Company expressly for use in the Registration Statement, any Issuer Free Writing Prospectus, the
Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto) are the
statements set forth in the third paragraph and the seventh paragraph under the caption
“Underwriting” in the Preliminary Prospectus and the Prospectus; and the Underwriters confirm that
such statements are correct. The indemnity agreement set forth in this Section 8(b) shall be in
addition to any liabilities that each Underwriter may otherwise have.
24
(i) the indemnified party shall have employed separate counsel in accordance with the proviso
to the next preceding sentence (it being understood, however, that the indemnifying party shall not
be liable for the expenses of more than one separate counsel (together with local counsel),
approved by the indemnifying party (the Representatives in the case of Section 8(b) and Section 9),
representing the indemnified parties who are parties to such action) or (ii) the indemnifying party
shall not have employed counsel reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of the action, in each of
which cases the fees and expenses of counsel shall be at the expense of the indemnifying party.
Section 9. Contribution. If the indemnification provided for in Section 8 is for
any reason held to be unavailable to or otherwise insufficient to hold harmless an indemnified
party in respect of any losses, claims, damages, liabilities or expenses referred to therein, then
each indemnifying party shall contribute to the aggregate amount paid or payable by such
indemnified party, as incurred, as a result of any losses, claims, damages, liabilities or expenses
referred to therein (i) in such proportion as is appropriate to reflect the relative benefits
received by the Company, on the one hand, and the Underwriters, on the other hand, from the
offering of the Notes pursuant to this Agreement or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause (i) above but also the relative fault of the Company,
on the one hand, and the Underwriters, on the other hand, in connection with the statements or
omissions or inaccuracies in the representations and warranties herein which resulted in such
losses, claims, damages, liabilities or expenses, as well as any other relevant equitable
considerations. The relative benefits received by the Company, on the one hand, and the
Underwriters, on the other hand, in connection with the offering of the Notes pursuant to this
Agreement shall be deemed to be in the same respective proportions as the total net proceeds from
the offering of the Notes
25
pursuant to this Agreement (before deducting expenses) received by the Company, and the total
underwriting discount received by the Underwriters, in each case as set forth on the front cover
page of the Prospectus bear to the aggregate initial public offering price of the Notes as set
forth on such cover. The relative fault of the Company, on the one hand, and the Underwriters, on
the other hand, shall be determined by reference to, among other things, whether any such untrue or
alleged untrue statement of a material fact or omission or alleged omission to state a material
fact or any such inaccurate or alleged inaccurate representation or warranty relates to information
supplied by the Company, on the one hand, or the Underwriters, on the other hand, and the parties’
relative intent, knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The amount paid or payable by a party as a result of the losses, claims, damages, liabilities
and expenses referred to above shall be deemed to include, subject to the limitations set forth in
Section 8(c), any legal or other fees or expenses reasonably incurred by such party in connection
with investigating or defending any action or claim. The provisions set forth in Section 8(c) with
respect to notice of commencement of any action shall apply if a claim for contribution is to be
made under this Section 9; provided, however, that no additional notice shall be required with
respect to any action for which notice has been given under Section 8(c) for purposes of
indemnification.
The Company and the Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 9 were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to in this Section 9.
Notwithstanding the provisions of this Section 9, no Underwriter shall be required to
contribute any amount in excess of the underwriting commissions received by such Underwriter in
connection with the Notes underwritten by it and distributed to the public. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
The Underwriters’ obligations to contribute pursuant to this Section 9 are several, and not joint,
in proportion to their respective underwriting commitments as set forth opposite their names in
Schedule A. For purposes of this Section 9, each officer and employee of an Underwriter and each
person, if any, who controls an Underwriter within the meaning of the Securities Act and the
Exchange Act shall have the same rights to contribution as such Underwriter, and each director of
the Company, each officer of the Company who signed the Registration Statement, and each person, if
any, who controls the Company with the meaning of the Securities Act and the Exchange Act shall
have the same rights to contribution as the Company.
Section 10. Default of One or More of the Several Underwriters. If, on the Closing
Date, any one or more of the several Underwriters shall fail or refuse to purchase Notes that it or
they have agreed to purchase hereunder on such date, and the aggregate principal amount of Notes,
which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase does not
exceed 10% of the aggregate principal amount of the Notes, to be purchased on such date, the other
Underwriters shall be obligated, severally, in the proportion to the aggregate principal amounts of
such Notes set forth opposite their respective names on Schedule A bears to the aggregate principal
amount of such Notes set forth opposite the names of all such
26
non-defaulting Underwriters, or in such other proportions as may be specified by the
Representatives with the consent of the non-defaulting Underwriters, to purchase such Notes which
such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such date.
If, on the Closing Date, any one or more of the Underwriters shall fail or refuse to purchase such
Notes and the aggregate principal amount of such Notes with respect to which such default occurs
exceeds 10% of the aggregate principal amount of Notes to be purchased on such date, and
arrangements satisfactory to the Representatives and the Company for the purchase of such Notes are
not made within 48 hours after such default, this Agreement shall terminate without liability of
any party to any other party except that the provisions of Section 4, Section 6, Section 8 and
Section 9 shall at all times be effective and shall survive such termination. In any such case
either the Representatives or the Company shall have the right to postpone the Closing Date, but in
no event for longer than seven days in order that the required changes, if any, to the Registration
Statement, any Issuer Free Writing Prospectus, the Preliminary Prospectus or the Prospectus or any
other documents or arrangements may be effected.
As used in this Agreement, the term “Underwriter” shall be deemed to include any person
substituted for a defaulting Underwriter under this Section 10. Any action taken under this
Section 10 shall not relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
Section 11. Termination of this Agreement. Prior to the Closing Date, this
Agreement may be terminated by the Representatives by notice given to the Company if at any time
(i) trading or quotation in any of the Company’s securities shall have been suspended or limited by
the Commission or by the New York Stock Exchange, or trading in securities generally on either the
Nasdaq Stock Market or the New York Stock Exchange shall have been suspended or limited, or minimum
or maximum prices shall have been generally established on any of such stock exchanges by the
Commission or NASD; (ii) a general banking moratorium shall have been declared by any of federal or
New York authorities; (iii) there shall have occurred any outbreak or escalation of national or
international hostilities or any crisis or calamity involving the United States, or any change in
the United States or international financial markets, or any substantial change or development
involving a prospective substantial change in United States’ or international political, financial
or economic conditions, as in the judgment of the Representatives is material and adverse and makes
it impracticable or inadvisable to market the Notes in the manner and on the terms described in the
Disclosure Package and the Prospectus or to enforce contracts for the sale of securities; (iv) in
the judgment of the Representatives there shall have occurred any Material Adverse Change; or (v)
there shall have occurred a material disruption in commercial banking or securities settlement or
clearance services in the United States. Any termination pursuant to this Section 11 shall be
without liability on the part of (a) the Company to any Underwriter, except that the Company shall
be obligated to reimburse the expenses of the Representatives and the Underwriters pursuant to
Sections 4 and 6 hereof, (b) any Underwriter to the Company, or (c) of any party hereto to any
other party except that the provisions of Section 8 and Section 9 shall at all times be effective
and shall survive such termination.
Section 12. Representations and Indemnities to Survive Delivery. The respective
indemnities, agreements, representations, warranties and other statements of the Company, of its
27
officers and of the several Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation made by or on behalf of any
Underwriter or the Company or any of its or their partners, officers or directors or any
controlling person, as the case may be, and will survive delivery of and payment for the Notes sold
hereunder and any termination of this Agreement.
Section 13. Notices. All communications hereunder shall be in writing and shall be
mailed, hand delivered or telecopied and confirmed to the parties hereto as follows:
If to the Representatives:
Banc of America Securities LLC
00 Xxxx 00xx Xxxxxx
XX0-000-00-00
Xxx Xxxx, Xxx Xxxx 00000
00 Xxxx 00xx Xxxxxx
XX0-000-00-00
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: High Grade Transaction Management/Legal
Attention: High Grade Transaction Management/Legal
and
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: General Counsel
Attention: General Counsel
and
Greenwich Capital Markets, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx XxXxxx
Attention: Xxxx XxXxxx
with a copy to:
Shearman & Sterling LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxxx
Attention: Xxxxxxx X. Xxxxxxxxx
28
If to the Company:
ProLogis
0000 Xxxxxxx Xxx
Xxxxxx, Xxxxxxxx 00000
0000 Xxxxxxx Xxx
Xxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
Attention: Xxxxxx X. Xxxxxxx
with a copy to:
Xxxxx Xxxxx Xxxx & Maw LLP
00 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
00 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
Attention: Xxxxxxx X. Xxxxx
Any party hereto may change the address for receipt of communications by giving written notice
to the others.
Section 14. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto, including any substitute Underwriters pursuant to Section 10 hereof, and
to the benefit of the employees, officers and directors and controlling persons referred to in
Section 8 and Section 9, and in each case their respective successors, and no other person will
have any right or obligation hereunder. The term “successors” shall not include any purchaser of
the Notes as such from any of the Underwriters merely by reason of such purchase.
Section 15. Partial Unenforceability. The invalidity or unenforceability of any
Section, paragraph or provision of this Agreement shall not affect the validity or enforceability
of any other Section, paragraph or provision hereof. If any Section, paragraph or provision of
this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed
to be made such minor changes (and only such minor changes) as are necessary to make it valid and
enforceable.
Section 16. Governing Law Provisions. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS
MADE AND TO BE PERFORMED IN SUCH STATE.
Section 17. No Fiduciary Duty. The Company acknowledges and agrees that: (i) the
purchase and sale of the Notes pursuant to this Agreement, including the determination of the
public offering price of the Notes and any related discounts and commissions, is an arm’s-length
commercial transaction between the Company, on the one hand, and the several Underwriters, on the
other hand, and the Company is capable of evaluating and understanding and understands and accepts
the terms, risks and conditions of the transactions contemplated by this Agreement; (ii) in
connection with each transaction contemplated hereby and the process leading to such
29
transaction each Underwriter is and has been acting solely as a principal and is not the
financial advisor, agent or fiduciary of the Company or its affiliates, stockholders, creditors or
employees or any other party; (iii) no Underwriter has assumed or will assume an advisory, agency
or fiduciary responsibility in favor of the Company with respect to any of the transactions
contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has
advised or is currently advising the Company on other matters) and no Underwriter has any
obligation to the Company with respect to the offering contemplated hereby except the obligations
expressly set forth in this Agreement; (iv) the several Underwriters and their respective
affiliates may be engaged in a broad range of transactions that involve interests that differ from
those of the Company and that the several Underwriters have no obligation to disclose any of such
interests by virtue of any advisory, agency or fiduciary relationship; and (v) the Underwriters
have not provided any legal, accounting, regulatory or tax advice with respect to the offering
contemplated hereby and the Company has consulted its own legal, accounting, regulatory and tax
advisors to the extent it deemed appropriate.
This Agreement supersedes all prior agreements and understandings (whether written or oral)
between the Company and the several Underwriters, or any of them, with respect to the subject
matter hereof. The Company hereby waives and releases, to the fullest extent permitted by law, any
claims that the Company may have against the several Underwriters with respect to any breach or
alleged breach of agency or fiduciary duty.
Section 18. General Provisions. This Agreement may be executed in two or more
counterparts, each one of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument. This Agreement may not be amended or modified
unless in writing by all of the parties hereto, and no condition herein (express or implied) may be
waived unless waived in writing by each party whom the condition is meant to benefit. The Table of
Contents and the Section headings herein are for the convenience of the parties only and shall not
affect the construction or interpretation of this Agreement.
Each of the parties hereto acknowledges that it is a sophisticated business person who was
adequately represented by counsel during negotiations regarding the provisions hereof, including,
without limitation, the indemnification provisions of Section 8 and the contribution provisions of
Section 9, and is fully informed regarding said provisions. Each of the parties hereto further
acknowledges that the provisions of Sections 8 and 9 hereto fairly allocate the risks in light of
the ability of the parties to investigate the Company, its affairs and its business in order to
assure that adequate disclosure has been made in the Registration Statement, the Disclosure Package
and the Prospectus (and any amendments and supplements thereto), as required by the Securities Act
and the Exchange Act.
30
If the foregoing is in accordance with your understanding of our agreement, kindly sign
and return to the Company the enclosed copies hereof, whereupon this instrument, along with all
counterparts hereof, shall become a binding agreement in accordance with its terms.
Very truly yours, PROLOGIS |
||||
By: | /s/ Xxxxxx X. Xxxxxxx | |||
Name: | Xxxxxx X. Xxxxxxx | |||
Title: | Managing Director & Secretary; | |||
Prologis — Underwriting Agreement
The foregoing Underwriting Agreement is hereby confirmed and accepted by the Representatives
as of the date first above written.
BANC OF AMERICA SECURITIES LLC | ||||
CITIGROUP GLOBAL MARKETS INC. | ||||
GREENWICH CAPITAL MARKETS, INC. | ||||
Acting on behalf of themselves and as | ||||
Representatives of the several Underwriters | ||||
named in the attached Schedule A | ||||
By:
|
BANC OF AMERICA SECURITIES LLC | |||
By: |
/s/ Banc of America Securities LLC | |||
Title: Vice President | ||||
By:
|
CITIGROUP GLOBAL MARKETS INC. | |||
By: |
/s/ Citigroup Global Markets Inc. | |||
Title: | ||||
By:
|
GREENWICH CAPITAL MARKETS, INC. | |||
By: |
/s/ Greenwich Capital Markets, Inc. | |||
Title: |
Prologis — Underwriting Agreement
SCHEDULE A
Aggregate | ||||
Principal | ||||
Amount of | ||||
the Notes | ||||
to be | ||||
Underwriters | Purchased | |||
Banc of America Securities LLC |
$ | 124,667,000 | ||
Citigroup Global Merkets Inc. |
124,667,000 | |||
Greenwich Capital Markets, Inc. |
124,666,000 | |||
ABN AMRO Incorporated |
36,667,000 | |||
UBS Securities LLC |
36,667,000 | |||
Wachovia Capital Markets, LLC |
36,666,000 | |||
Calyon Securities (USA) Inc. |
16,500,000 | |||
Daiwa Securities America Inc. |
16,500,000 | |||
Scotia Capital (USA) Inc. |
16,500,000 | |||
SG Americas Securities, LLC |
16,500,000 | |||
Total |
$ | 550,000,000 | ||
Sch. A-1
SCHEDULE B
LIST OF SIGNIFICANT SUBSIDIARIES
Palmtree Acquisition Corporation
PLD International Incorporated
ProLogis Japan Incorporated
TCL Holdings S.A.
PLD International Incorporated
ProLogis Japan Incorporated
TCL Holdings S.A.
Sch. B-1
ANNEX I
ProLogis—Issuer Free Writing Prospectuses
1. Final Term Sheet, dated November 9, 2006, for the 5.625% Notes due November 15, 2016.
Annex I-1
EXHIBIT A
Opinion of counsel for the Company to be delivered pursuant to Section 5(f) of the
Underwriting Agreement.
References to the Preliminary Prospectus or the Prospectus in this Exhibit A include any
supplements thereto at the Closing Date.
(i) The Company has been duly organized and is validly existing as a real estate investment
trust in good standing under the laws of the State of Maryland and has the trust power and
authority to own, lease and operate its properties and to conduct its business as described in the
Disclosure Package and the Prospectus and to enter into and perform its obligations under each of
this Agreement, the Notes, the Indenture and the Borrower Pledge Agreement. The Company is duly
qualified to transact business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of property or the conduct
of business, except for such jurisdictions where the failure to so qualify or to be in good
standing would not, individually or in the aggregate, result in a Material Adverse Change.
(ii) Each of the U.S. Grantors has been duly organized and is validly existing and in good
standing under the laws of its jurisdiction of organization and has the power and authority to own,
lease and operate its properties and to conduct its business as described in the Disclosure Package
and the Prospectus and to enter into and perform its obligations under its respective Pledge
Agreement. Each U.S. Grantor is duly qualified to transact business and is in good standing in
each jurisdiction in which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except for such jurisdictions where the failure to
so qualify or to be in good standing would not, individually or in the aggregate, result in a
Material Adverse Change.
(iii) This Agreement has been duly authorized, executed and delivered by the Company.
(iv) The Base Indenture has been duly qualified under the Trust Indenture Act and has been
duly authorized, executed and delivered by the Company and constitutes a valid and binding
agreement of the Company, enforceable against the Company in accordance with its terms, except as
the enforcement thereof may be limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other similar laws relating to or affecting the rights and remedies
of creditors or by general equitable principles.
(v) Each of the First Supplemental Indenture, the Second Supplemental Indenture and the Third
Supplemental Indenture has been duly authorized, executed and delivered by the Company and
constitutes a valid and binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or other similar laws relating to or
affecting the rights and remedies of creditors or by general equitable principles.
(vi) The Notes have been duly authorized for issuance and sale pursuant to this Agreement and
the Indenture and, when executed by the Company and authenticated by the Trustee in the manner
provided for in the Indenture and delivered against payment of the purchase price therefor in
accordance with the terms of this Agreement, will constitute valid and
Exh. A-1
binding obligations of the Company, enforceable in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting the rights and remedies of creditors or by general equitable
principles, and will be entitled to the benefits of the Indenture.
(vii) Each of the Pledge Agreements has been duly authorized, executed and delivered by the
respective Grantor and constitutes a valid and binding agreement of such Grantor, enforceable
against it in accordance with its terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws
relating to or affecting the rights and remedies of creditors or by general equitable principles.
(ix) Each Pledge Agreement is effective to create a security interest under Article 9 of the
Uniform Commercial Code as currently in effect in the State of New York (the “UCC”) to the extent a
security interest can be created thereunder in the collateral covered thereby (any such collateral,
“Article 9 Collateral”).
(x) Pursuant to Section 9-301 of the UCC, the local law of the jurisdiction where instruments
are actually located governs perfection of a possessory security interest in such instruments.
Assuming the Collateral Agent takes and retains possession (as such term is used in Section
9-313(a) of the UCC) in the State of New York of the instruments pledged to the Collateral Agent
pursuant to each Pledge Agreement (the “Pledged Notes”), and further assuming the Pledged Notes are
each duly indorsed to the Collateral Agent or in blank by an effective indorsement, the Collateral
Agent’s security interest in the rights of the Company and the applicable U.S. Grantors and Foreign
Grantors (each a “Pledgor”) in the Pledged Notes will be perfected under the UCC.
(xi) Under the UCC (including the choice of laws provisions thereof), the local law of the
jurisdiction where a debtor is “located” governs (with certain exceptions not relevant to this
opinion) perfection of a nonpossessory security interest in any Article 9 Collateral in which a
security interest may be perfected by filing a financing statement under the Uniform Commercial
Code as in effect in the U.S. State of filing (any such collateral, “Filing Collateral”). Under
the UCC (including the choice of laws provisions thereof), (1) the U.S. State that is the
jurisdiction of formation of the Company or a U.S. Grantor (a “Formation State”) is the “location”
for the Company or such U.S. Grantor and, therefore, the local laws of such Formation State govern
perfection by the filing of financing statements of a security interest in the Company’s or such
U.S. Grantor’s rights in its Filing Collateral and (2) assuming that each Foreign Grantor’s only
place of business or its chief executive office is located in the country in which such Foreign
Grantor was organized or formed and the law of such country does not require information
Exh. A-2
concerning the existence of a nonpossessory security interest to be made generally available
in a filing, recording or registration system as a condition or result of the security interest’s
obtaining priority over the rights of a lien creditor with respect to such Foreign Grantor’s
Article 9 Collateral (as to which we express no opinion), then the District of Columbia is the
“location” of such Foreign Grantor and, therefore, the local laws of the District of Columbia
govern perfection by the filing of financing statements of a security interest in such Foreign
Grantor’s rights in its Filing Collateral. Accordingly, the security interest of the Collateral
Agent in the Filing Collateral of such Foreign Grantor is perfected under the Uniform Commercial
Code as currently in effect in the District of Columbia.
(xii) The Registration Statement became effective upon filing with the Commission pursuant to
Rule 462(e) under the Securities Act. To the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been issued under the Securities Act
and no proceedings for such purpose have been instituted or are pending or are contemplated or
threatened by the Commission. Any required filing of the Preliminary Prospectus and the Prospectus
and any supplement thereto pursuant to Rule 424(b) under the Securities Act has been made in the
manner and within the time period required by such Rule 424(b).
(xiii) The Registration Statement, the Prospectus, including any document incorporated by
reference therein, and each amendment or supplement to the Registration Statement and the
Prospectus, including any document incorporated by reference therein (other than the financial
statements and supporting schedules included or incorporated by reference therein or in exhibits to
or excluded from the Registration Statement and other than the Form T-1, as to which no opinion
need be rendered), when they became effective or were filed with the Commission, as the case may
be, complied as to form in all material respects with the applicable requirements of the Securities
Act, the Exchange Act and the Trust Indenture Act.
(xiv) The Notes, the Indenture and the Security Documents conform in all material respects to
the descriptions thereof contained in the Disclosure Package and the Prospectus.
(xv) The statements (A) in the Base Prospectus under the captions “Risk Factors—Federal
Income Tax Risks,” “Description of Debt Securities” and “Federal Income Tax Considerations” (B) in
each of the Preliminary Prospectus Supplement and the Prospectus Supplement under the caption
“Description of the Notes” and (C) incorporated by reference in the Preliminary Prospectus and the
Prospectus from Item 3 of Part I of the Company’s Annual Report on Form 10-K, and (D) in the Item
15 of the Registration Statement, in each case insofar as such statements constitute a summary of
the legal matters, documents or proceedings referred to therein has been reviewed by such counsel
and fairly present and summarize, in all material respects, the matters referred to therein.
(xvi) No consent, approval, authorization or other order of, or registration or filing with,
any court or other governmental authority or agency, is required for the Company’s execution,
delivery and performance of this Agreement and the Indenture and consummation of the transactions
contemplated hereby and thereby and by the Disclosure Package and the Prospectus (including the
issuance and delivery of the Notes) and the execution, delivery and performance by the Grantors of
the Pledge Agreements, except such as have been obtained or made by the
Exh. A-3
Company and are in full force and effect under the Securities Act, Trust Indenture Act,
applicable state securities or blue sky laws and from NASD and consents the failure of which to
obtain would not result in a Material Adverse Change or have a material adverse effect on the
transactions contemplated by this Agreement or the Indenture or on the validity and enforceability
of the Notes and the Indenture.
(xvii) The execution and delivery of each of the Agreement and the Indenture by the Company
and the execution and delivery of the Pledge Agreements by the Grantors, and the execution,
issuance and delivery of the Notes by the Company and the performance by the Company and the
Grantors, as applicable, of their respective obligations thereunder (other than performance by the
Company of its obligations under the indemnification section of the Agreement, as to which no
opinion need be rendered) (A) will not result in any violation of the provisions of the declaration
of trust (or charter or by-laws or other similar constitutive documents) of the Company or the
Grantors or any Significant Subsidiary incorporated or organized in a jurisdiction located in the
United States and so designated on Schedule B to the Agreement (each, a “U.S. Significant
Subsidiary”); (B) will not constitute a breach of, or Default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the Company or the
Grantors or any of the U.S. Significant Subsidiaries pursuant to (x) the Global Senior Credit
Agreement, dated as of October 6, 2005, by and among the Company, certain other borrowers, Bank of
America, N.A., ABN Amro Bank N.V. and Sumitomo Mitsui Banking Corporation (other than with respect
to compliance by the Company or any subsidiary with any financial covenants as to which no opinion
need be rendered), or (z) to the best knowledge of such counsel, any other material Existing
Instrument; or (C) to the best knowledge of such counsel, will not result in any violation of any
law, administrative regulation or administrative or court decree applicable to the Company or the
Grantors or any U.S. Significant Subsidiary, other than in the case of clauses (B) and (C), such
Defaults and violations as would not, individually or in the aggregate, result in a Material
Adverse Change.
(xviii) The Company is not, and after receipt of payment for the Notes will not be, an
“investment company” within the meaning of Investment Company Act.
(xix) The Company has qualified to be taxed as a real estate investment trust pursuant to the
Internal Revenue Code for its taxable years ended December 31, 1993, 1994, 1995, 1996, 1997, 1998,
1999, 2000, 2001, 2002, 2003, 2004 and 2005, and the Company’s present organization, ownership, the
Company’s present and proposed method of operation, assets and income are such that the Company is
in a position under present law to so qualify for the fiscal year ended December 31, 2006 and in
the future.
(xx) The investments of the Company described in the Disclosure Package and the Prospectus
are permitted investments under the declaration of trust of the Company.
In addition, such counsel shall state that they have examined various documents and records
and participated in conferences with officers and other representatives of the Company,
representatives of the independent public or certified public accountants for the Company and with
representatives of the Underwriters at which the contents of the Registration Statement, the
Disclosure Package and the Prospectus, and any supplements or amendments thereto, and related
matters were discussed and, although such counsel is not passing upon and does not assume any
Exh. A-4
responsibility for the accuracy, completeness or fairness of the statements contained in the
Registration Statement, the Disclosure Package or the Prospectus, including the documents
incorporated by reference therein (other than as specified above), and any supplements or
amendments thereto, on the basis of the foregoing, no facts have come to their attention that lead
them to believe that (i) the Registration Statement or any amendments thereto, at the most recent
deemed effective date pursuant to Rule 430(B)(f)(2) under the Securities Act prior to the Initial
Sale Time, contained an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not misleading; (ii) the
Prospectus, as of its date or at the Closing Date, contained an untrue statement of a material fact
or omitted to state a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package as
of the Initial Sale Time, contained any untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in the light of circumstances
under which they were made, not misleading (except for the Form T-1 and the financial statements,
supporting schedules and other financial or statistical data included or incorporated by reference
therein or derived or omitted therefrom as to which such counsel need express no belief).
In rendering such opinion, such counsel may rely (A) as to matters involving the application of
laws of any jurisdiction other than the General Corporation Law of the State of Delaware, the laws
regarding real estate investment trusts of the State of Maryland or the federal law of the United
States, to the extent they deem proper and specified in such opinion, upon the opinion (which shall
be dated the Closing Date, shall be satisfactory in form and substance to the Underwriters, shall
expressly state that the Underwriters may rely on such opinion as if it were addressed to them and
shall be furnished to the Representative) of other counsel of good standing whom they believe to be
reliable and who are satisfactory to counsel for the Underwriters; provided, however, that such
counsel shall further state that they believe that they and the Underwriters are justified in
relying upon such opinion of other counsel, (B) upon the opinion of general counsel of the Company
referred to in Section 5(g) of the Agreement, and (C) as to matters of fact, to the extent they
deem proper, on certificates of responsible officers of the Company and public officials and on the
representations of the Company as provided in the Agreement. In rendering the opinions contained
in paragraphs (xvii) and (xxi), such opinion may be based upon (a) the Internal Revenue Code and
the rules and regulations promulgated thereunder and the interpretations of the Internal Revenue
Code and such regulations by the courts and the Internal Revenue Service, all as they are in effect
and exist at the time of the opinion, (b) Maryland law existing and applicable to the Company, (c)
facts and other matters set forth in the Prospectus, (d) the provisions of the Amended Restated
Declaration of Trust of the Company, the agreements relating to properties owned by the Company and
(e) certain statements and representations as to factual matters made by the Company to such
counsel provided that such statements and representations are also set forth in a certificate to
the Underwriters. In rendering the opinions contained in paragraphs (ix) through (xi) such counsel
may make such assumptions as are customarily made in connection with such opinions.
Exh. A-5
EXHIBIT B
Opinion of the General Counsel of the Company to be delivered pursuant to Section 5(g) of the
Underwriting Agreement.
References to the Preliminary Prospectus or the Prospectus in this Exhibit B include any
supplements thereto at the Closing Date.
(i) Each of the U.S. Significant Subsidiaries of the Company has been duly incorporated or
organized, as the case may be, and is validly existing as a corporation, trust or partnership in
good standing under the laws of the jurisdiction of its incorporation or organization, as the case
may be, and has the power (corporate or other) and authority to own, lease and operate its
properties and to conduct its business as described in the Disclosure Package and the Prospectus.
Each U.S. Significant Subsidiary is duly qualified as a foreign corporation, trust or partnership
to transact business and (except as to any general partnership) is in good standing in each
jurisdiction in which such qualification is required, whether by reason of the ownership or leasing
of property or the conduct of business, except for such jurisdictions where the failure to so
qualify or to be in good standing would not, individually or in the aggregate, result in a Material
Adverse Change.
(ii) All of the issued and outstanding capital stock and other equity interests of each U.S.
Significant Subsidiary have been duly authorized and validly issued, is fully paid and (except for
general partnership interests) nonassessable; all shares of outstanding capital stock and other
equity interests of each U.S. Significant Subsidiary held by the Company, directly or through
subsidiaries, are owned free and clear of any security interest, mortgage, pledge, lien,
encumbrance or claim, except for such security interests, mortgages, pledges, liens, encumbrances
and claims as would not, individually or in the aggregate, result in a Material Adverse Change .
(iii) To the best knowledge of such counsel, there are no legal or governmental actions,
suits or proceedings pending or threatened which are required to be disclosed in the Registration
Statement, the Preliminary Prospectus or the Prospectus, other than those disclosed therein.
(iv) To the best knowledge of such counsel, there are no Existing Instruments required to be
described or referred to in the Registration Statement or to be filed as exhibits thereto other
than those described or referred to therein or filed or incorporated by reference as exhibits
thereto; and the descriptions thereof and references thereto are correct in all material respects.
(v) To the best knowledge of such counsel, neither the Company nor any subsidiary is in (A)
violation of its declaration of trust (or charter or by-laws or other similar constitutive
documents) or (B) violation of any law, administrative regulation or administrative or court decree
applicable to the Company or any U.S. Significant Subsidiary or (C) is in Default in the
performance or observance of any obligation, agreement, covenant or condition contained in any
material Existing Instrument, except in the case of (B) and (C) above, for such violations or
Defaults as would not, individually or in the aggregate, result in a Material Adverse
Change.
Exh. B-1
EXHIBIT C
[The final opinion in draft form will be attached as Exhibit C at the time this Agreement is
executed.]
Opinion of the Counsel for the Collateral Agent and the Administrative Agent to be delivered
pursuant to Section 5(e) of the Purchase Agreement.
(i) Based solely upon the Officer’s Certificate, the Security Agency Agreement has been duly
authorized, executed, and delivered by Collateral Agent.
(ii) The Security Agency Agreement is enforceable against Collateral Agent in accordance with
its terms.
Exh. C-1
EXHIBIT D
Form of Final Term Sheet for the Notes
PROLOGIS
PRICING TERM SHEET
5.625% Notes due 2016 | ||
Issuer: |
ProLogis | |
Security: |
5.625% Notes due 2016 | |
Size: |
$550,000,000 | |
Maturity Date: |
November 15, 2016 | |
Coupon: |
5.625% per annum, payable semi-annually | |
Interest Payment Dates: |
May 15 and November 15, commencing May 15, 2007 | |
Price to Public: |
99.592% | |
Underwriting Discount: |
0.650% | |
Net Proceeds, Before
Expenses, to Prologis: |
$544,181,000 | |
Spread to Benchmark Treasury: |
+ 105 bp | |
Benchmark Treasury: |
4.875% due 8/16 | |
Benchmark Treasury Spot: |
101-29 | |
Benchmark Treasury Yield: |
4.629% | |
Reoffer Yield: |
5.679% | |
Make-Whole Call: |
Treasury Rate + 20 basis points | |
Expected Settlement Date: |
November 14, 2006 | |
CUSIP / ISIN: |
000000XX0 / US743410AN28 | |
Ratings: |
Baa1 (stable) / BBB+ (stable) / BBB+ (stable) | |
Joint Book-Running Managers: |
Banc of America Securities LLC | |
Citigroup Global Markets Inc. | ||
RBS Greenwich Capital | ||
Senior Co-Managers: |
ABN AMRO Incorporated | |
UBS Securities LLC | ||
Wachovia Capital Markets, LLC | ||
Co-Managers: |
Calyon Securities (USA) Inc. | |
Daiwa Securities America Inc. | ||
Scotia Capital (USA) Inc. | ||
SG America Securities, LLC |
Note: A securities rating is not a recommendation to buy, sell or hold securities and may be
subject to revision or withdrawal at any time.
The issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus and
supplement thereto in that registration statement and other documents the issuer has filed with the
SEC for more complete information about the issuer and this offering. You may get these documents
for free by visiting XXXXX on the SEC Web site at xxx.xxx.xxx. Alternatively, the issuer, any
underwriter or any dealer participating in the offering will arrange to send you the
Xxx. X-0
prospectus if you request it by contacting Banc of America Securities LLC by telephone (toll free)
at 0-000-000-0000 or by email at xx.xxxxxxxxxx_xxxxxxxxxxxx@xxxxxxxxxxxxxx.xxx, by contacting
Citigroup Global Markets Inc. by telephone (toll free) at 0-000-000-0000 or by contacting RBS
Greenwich Capital by telephone (toll free) at 0-000-000-0000 or by email at
xxxxxxxxxxxxxxxxx@xxxxx.xxx.
Xxx. X-0